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Justice and Fairness

For an upcoming book club discussion, I am reading Master of the Game: Henry Kissinger and the Art of Middle East Diplomacy by Martin Indyk (Alfred K. Knopf, New York 2021). While I have a lot more reading to do to finish the book, I was struck by a passage in its early pages describing Kissinger’s strategy gleaned from nineteenth-century European history:

…the stability of any international system depended not just on the security of its members but also, on the degree to which they accepted the ‘justice” and “fairness” of the existing order. (Id. at 82.)

 According to the author, Kissinger did not “…believe in peace as an achievable or even desirable objective.” (Id. at 31.) As a result, he shied away from aiming for peace treaties preferring to “…seek agreements that would give all sides a stake in preserving the existing order. “(Id.)

Appreciating the philosophy of Immanuel Kant, Kissinger took away from those writings a belief that “… conflict between states would lead over time to the exhaustion of their powers. Eventually, they would prefer peace to the misery of war. In other words, peacemaking was a gradual process that could not be rushed…” (Id. at 32, emphasis original.)

This last quote reminded me of litigation. Indeed, lawsuits are often analogized to war. Many war metaphors are used by lawyers during the course of a lawsuit. At the start of a case, both sides feel quite powerful; Each side believes it to be in the “right” and the other side in the “wrong.” But, as the litigation (aka “war) drags on, each side becomes exhausted, and their “powers” become diminished. Consequently, each side begins to see the litigation in a different light and soon just want it to be over.  That is, each side is beginning to “prefer peace to the misery of war.”

So, each side seeks the assistance of a third party (aka a mediator or in the case of international relations, a neutral third-party state) to help it find a way to maintain the existing order and thus equilibrium. (Id. at 32.) And, as any mediator will be quick to note, this peacemaking is a slow process; it cannot be rushed. The “negotiation dance” must be played out slowly and carefully.

And what are the parties to any litigation seeking in any potential settlement? The same that nations seek in resolving wars: Justice and Fairness! Whatever the outcome to the litigation, the parties do not want the settlement to be so one sided as to be unfair or unjust. Each party must be able to “save face” and be able to tell their constituents that they “won” or at least, they did not “lose.” Each side must be able to put a positive spin on any settlement just as nations seek to do at the end of a war!

So, while this book talks in terms of the Middle East crisis during the 1970’s, much of it can be applied to even the most unneighborly of disputes.

…. Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE

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